TRENDING

Ruling means agencies need plan for wiping electronic documents

By Christopher J. Dorobek

Nov 10, 1997

In a decision late last month, U.S. District Judge Paul L. Friedman threw out a two-year-old National Archives and Records Administration (NARA) regulation that let agencies wipe out electronic documents regardless of content.

GRS 20 permitted agencies to destroy e-mail and word processing documents once they had been copied to paper or some other format and deemed "no longer needed for updating and revision."

The public advocacy group Common Cause filed suit, comparing the provision to an electronic paper shredder. Carlin, the group argued, had failed in his responsibilities toevaluate the value of documents on an agency-by-agency basis.

"Computers have now become a significant part of the way the federal government conducts its business. The federal government must adapt its electronic record-keeping capabilities to reflect that reality," Friedman ruled.

The Common Cause case is seen as a follow-on to an earlier case brought by journalist Scott Armstrong, in which the courts ruled that e-mail messages can be considered federal records. Though that ruling established e-mail documents as records, the ruling in the Common Cause case focuses on the specific issue of the retention and destruction of electronic documents.

"For many years, Congress has recognized the importance of maintaining certain types of government records and has established safeguards to insure that records with sufficient administrative, legal, research and other value are not destroyed," Friedman wrote in his 36-page decision. "It should come as no surprise that electronic records, which take less storage space than paper records, should be subject to the same safeguards."

The ruling, however, has some in the government information technology community concerned about the possible implications for data storage.

"Clearly, we have to step back," Treasury Department chief information officer James Flyzik said. "We need to look at where we are and look at reality, since it simply isn't feasible to save all electronic records.

Obviously, he said, the decision will require agencies to re-examine their rules about archiving electronic documents.

Specifically, Friedman ruled that documents created electronically must be made available electronically.

"While an exact duplicate of a particular record might be discardable, electronic versions of records cannot categorically be regarded as valueless extra copies of paper versions," he wrote. "Simply put, electronic communications are rarely identical to their paper counterparts. they are records unique and distinct from printed versions of the same record."

Records stored electronically have search, manipulation and indexing capabilities not common to paper records, an advantage recognized by NARA, Friedman said.

"It seems like the medium has become the message," with a higher standard set for electronic records, said one IT staff member responsible for archiving his agency's records. "You're archiving types of records based on their speculative value sometime in the future," he said.

The IRM staff member, however, said those duties won't come without a price. "What is government in business to do? To govern and provide guidance or provide historical information so historians can write master's theses?" the staff member said.

Public Citizen attorney Michael Tankersley said the ruling means that agencies will have to create a process for analyzing the importance of documents. "It means that electronic-mail and word processing documents are going to have to be appraised just like other documents," he said.

But that also means that just like other documents, many of the electronic items will not need to be archived, he said.

"We've recognized all along for the bulk of agency records, they're not going to have value that's going to require retention," Tankersley said.

It is important to recognize that Common Cause did not challenge the destruction of electronic records per se, only the use of a General Record Schedule to schedule the destruction of electronic records without distinguishing valuable electronic records from useless ones, Friedman said.

Some IT professionals suggested that the ruling illustrates the success of systems in handling government documents. Such record-keeping duties go hand-in-hand with the proliferation of computers, said Dean Bundy, a Navy official and the co-chairman of an informal group of 150 IRM managers interested in working with archivists.

The government's IT professionals have "to accept that the old ways of doing business and the old paradigms don't work anymore," Bundy said. "This is an entirely new world for the records management community."

Electronic archiving presents a challenge for both the records creators and the government's archivists, Bundy said. Systems staffs will have to consider records management, and records managers will have to consider technology, he said.